SR 09-23-2014 7ACity Council Meeting: September 23, 2014
Agenda Item: T A
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Introduction and First Reading of an Ordinance Amending the Anti -
Smoking Law to Regulate Electronic Smoking Devices The Same As
Traditional Cigarettes
Recommended Action
Staff recommends that the City Council introduce for first reading the attached proposed
ordinance which would include electronic smoking devices within the definition of
"smoke" and "smoking" for purposes of the. City's anti - smoking laws.
Executive Summary
The proposed ordinance would make two changes to the City's anti - smoking laws as
Council directed. First, it would include electronic smoking devices within the definition
of smoking for all places where smoking is regulated in the City, including the new
location of vaping lounges. The two existing vaping lounges in Santa Monica would be
exempted from this rule. Second, it would add electronic smoking devices to the
definition of tobacco products for purposes of the City's tobacco retailer licensing law.
Background
On June 24, 2014, Council directed staff to prepare an ordinance to add the use of
electronic smoking devices to the definition of smoking under the City's anti - smoking
laws; to add vaping lounges to the places where smoking is prohibited while exempting
the two existing vaping lounges in the City; to include electronic smoking devices within
the definition of tobacco products under the City's tobacco retailer licensing laws; and to
review other issues related to electronic smoking devices for possible regulation.
Discussion
The attached proposed ordinance brings electronic smoking devices within the definition
of smoking for purposes of the City's restrictions on smoking in specified locations. It
also adds a new location where smoking — which would now include "vaping" — is
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prohibited: vaping lounges. As Council requested, the two local businesses which were
licensed as vaping lounges as of June 24, 2014, are exempted from the new restriction.
These are Fix Vapor at 2909 Main Street and Vapor Delight at 1855 Lincoln Boulevard
(Any successor businesses to at those addresses would not be exempted). It was
necessary to add vaping lounges as a restricted location because California state law
permits smoking in tobacco shops and lounges by exempting them from the statewide
ban on smoking at indoor workplaces.
The ordinance also requires that minors be excluded from the two exempted vaping
lounges pursuant to Council's request. Council could also consider a more general rule
prohibiting minors from entering e- cigarette shops at all. However, staff recommends
against such a rule since various types of retail stores such as chain pharmacies sell
electronic smoking devices: it would be difficult to define which businesses would have
to exclude minors. If the act of vaping is allowed only in the two grandparented lounges,
and they cannot admit minors, as proposed, that may provide sufficient protection to
children from the undesired influence of electronic smoking devices.
Other issues under consideration
Council directed staff to consider three additional issues in the context of regulating
electronic smoking devices: proximity to schools, ventilation, and potential proliferation
of vaping lounges.
1) Proximity to schools
Staff shares Council's concern over the potential for vaping lounges being located close
to schools where children might inappropriately be influenced by them. However, under
the proposed ordinance the only two grandparented businesses at which vaping would
be allowed are both located a substantial distance from any schools. If Council wanted
to prohibit the location of any vaping stores (whether or not the act of vaping is allowed
there) within, for example, 500 or 1,000 feet of any school, staff recommends
addressing the subject when Council next revisits the zoning code. In any event, such a
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rule would be problematic since, as noted above, many general retail stores sell
electronic smoking devices. Also, there is no current rule in local or state law about the
location of stores that sell cigarettes.
2) Ventilation
The proposed ordinance requires that, in order to allow the use of electronic smoking
devices, the two exempted businesses must have "appropriate ventilation so as not to
interfere with neighboring occupants." This standard is intentionally general since to
date, the state Occupational Safety and Health Administration has not adopted
standards for ventilation to regulate the spread of second -hand smoke. Council could
consider removing the ventilation requirement since there is no similar requirement for
tobacco lounges under state law; and since studies show that vapor from electronic
smoking devices is less harmful than cigarette smoke.
3) Proliferation of vaping lounges
Council expressed concern about the possible proliferation of vaping lounges in the
City, given the trend of greatly increasing popularity of electronic smoking devices.
Presumably the prohibition against the use of such devices in all but the two
grandparented businesses, would allay this concern. If Council determines in the future
that businesses selling electronic smoking devices have proliferated excessively, it
could consider a restrictive ordinance at that time, based on the facts.
Alternatives
Council could consider various alternatives to the proposed ordinance as described in
more detail above.
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Financial Impacts & Budget Actions
The proposed ordinance would restrict the locations where electronic smoking devices
can be consumed and it might result in modestly increased enforcement activity in
locations where smoking is already prohibited. Adopting this ordinance will result in
marginal additional costs for outreach and communication. The City Attorney's Office,
and any other departments conducting outreach, will cover these costs within existing
budgets.
Prepared by: Adam Radinsky, Head, Consumer Protection Unit
Approved:
Attachment A: Proposed Ordinance
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Forwarded to Council:
Rod Gould
City Manager
City Council Meeting: September 23, 2014
ORDINANCE NUMBER
(City Council Series)
ATTACHMENT A
Santa Monica, California
(CCS)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA AMENDING CHAPTERS 4.44 AND 4.45 OF THE SANTA MONICA
MUNICIPAL CODE ON SMOKING TO REGULATE ELECTRONIC SMOKING
DEVICES SIMILARLY TO TOBACCO PRODUCTS
WHEREAS, during the past several years the popularity of electronic smoking
devices including electronic cigarettes or "e- cigarettes" in this country has grown
exponentially, especially among young people; and
WHEREAS, Santa Monica has been at the forefront of adopting and enforcing
laws to protect people from involuntary exposure to the dangers of secondhand smoke;
!me
WHEREAS, electronic smoking devices are used in the same manner as
conventional tobacco products and operate by heating a liquid chemical solution
typically made up of propylene glycol or glycerin, nicotine, and flavored chemicals, with
the user exhaling a smoke -like vapor similar in appearance to the exhaled smoke from
cigarettes; and
WHEREAS, the use of electronic smoking devices in smoke -free locations may
increase the social acceptability and appeal of smoking, particularly for youth,
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undermining the progress that has been made over the years in discouraging smoking;
WHEREAS, e- cigarettes are widely believed to be a "gateway" to cigarette use,
especially among youth, since they contribute to nicotine addiction and glamorize
smoking; and
WHEREAS, nicotine is a highly addictive neurotoxin and is included in the
Proposition 65 list of Chemicals Known to the State to Cause Cancer or Reproductive
Toxicity and is known to cause birth defects and is particularly dangerous for vulnerable
populations including children, pregnant women and people with cardiovascular
conditions; and
WHEREAS, numerous studies have shown the potential health risks from the
vapor of e- cigarettes, including a significant increase in airway resistance among users
and cell mutations similar to those caused by cigarette smoke; and
WHEREAS, a 2013 study found a total of 22 different elements in the vapors of
electronic smoking devices, three of which appear on the U.S. Food and Drug
Administration's (FDA) list of harmful and potentially harmful chemicals; and
WHEREAS, the U.S. Centers for Disease Control recently reported a sharp rise
in emergency calls to poison centers due to exposure to toxic e- cigarette liquids
contemporaneous with the rise in e- cigarette use, with such calls rising from around one
per month in 2010, to 215 per month in 2014; and
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WHEREAS, e- cigarette manufacturers have not submitted clinical studies about
the safety or efficacy of the devices to the FDA, so consumers have no way of knowing
what types or concentrations of potentially harmful chemicals they are inhaling and
exhaling when they consume them or are exposed to them; and
WHEREAS, e- cigarettes have not been scientifically proven to be safe for users
or persons exposed to their vapor; and
WHEREAS, the marketing and advertising of e- cigarettes in television, radio,
online and print advertisements is expanding rapidly with no restrictions or regulation,
with much of the advertising directed at children; and
WHEREAS, e- cigarettes appear visually similar to traditional cigarettes from
even a short distance, leading to confusion of the two and giving the visual impression
that smoking is again allowed in locations where smoking is banned, thus hampering
public and private enforcement of no- smoking laws; and
WHEREAS, the scientific evidence to date does not support the claim that e-
cigarettes are an effective smoking cessation tool, but rather indicates that e- cigarette
users actually have significantly lower odds of quitting smoking cigarettes, by more than
30 percent; and
WHEREAS, California state law prohibits the sale of electronic smoking devices
to minors; and
WHEREAS, the City's tobacco retailer licensing law is intended to aid efforts to
prevent illegal sales of tobacco products to minors; and
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WHEREAS, more than 45 California cities, the cities of New York, Chicago,
Washington, D.C. and Boston, and at least five states have regulated e- cigarettes the
same as traditional tobacco products; and
WHEREAS, in order to protect the health, welfare and safety of its residents and
visitors by protecting them from exposure to the byproducts of electronic smoking
devices, facilitating uniform enforcement of smoke -free air laws, reducing the potential
for re- normalizing smoking where tobacco use is prohibited, and protecting youth from
observing behavior that could encourage them to smoke, the City has decided to
legislatively prohibit the use of electronic smoking devices in all areas where the
smoking of tobacco products is currently prohibited and to include electronic smoking
devices in its tobacco retailer licensing law;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Section 4.44.010 of the Santa Monica Municipal Code is hereby
amended to read as follows:
Section 4.44.010 Definitions.
The following words and phrases, as used in this Chapter or in any
other applicable law regulating smoking, shall have the following
meanings:
(a) Dining Area. A non - residential location where food or
beverages are served by a business or routinely consumed by
customers. This includes, but is not limited to, restaurant or bar
seating areas and patios.
(b) Electronic smoking device. An electronic or battery°
operated device that delivers vapor for inhalation. The term
includes every variation and type of such devices including
electronic cigarettes, electronic cigars, electronic cigarillos,
electronic pipes, electronic hookahs or any other similar
product.
(O(c) Multi -Unit Common Area. Any indoor or outdoor area at a
multi -unit residential property (which include rental properties and
condominiums) that is accessible to and usable by the occupant of
more than one unit, including, but not limited to, halls, walkways,
lobbies, laundry rooms, common cooking areas, outdoor dining
areas, patios, play areas, swimming pools, gardens, and parking
lots. The term also includes all outdoor areas that are within twenty -
five feet of any door, window or vent at a multi -unit residential
property, including private -use balconies, porches, decks, and
patios, and regardless of whether or not the included area is
located on the same property.
(s)ll Santa Monica Pier. The Santa Monica Pier, consisting of
both the Newcomb Pier and the Municipal Pier, protruding from the
Santa Monica State Beach at the southwesterly terminus of
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Colorado Avenue, and extending for approximately two thousand
one hundred thirty -five feet into the Santa Monica Bay.
kd-)fel Service Area. A place where people use or wait for services
provided by a private or government entity. This includes, but is not
limited to, bus stops, ATM lines, information kiosks and theater
lines.
(e)(f) Smoke or Smoking. The carrying or holding of a lighted or
activated pipe, cigar, cigarette, electronic smoking device, or
any other lighted or activated smoking product or equipment used
to burn any tobacco products, weed, plant, or any other
combustible substance. Smoking includes emitting or exhaling the
fumes or vapor of any pipe, cigar, cigarette, electronic smoking
device, or any other lighted smoking equipment used for burning
any tobacco product, weed, plant, or any other combustible
substance.
SECTION 2. Section 4.44.020 of the Santa Monica Municipal Code is hereby
amended to read as follows:
Section 4.44.020 Prohibitions.
(a) Smoking in Specific Locations. It is unlawful to smoke in the
following places:
(1) Any elevator;
(2) Any public park;
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(3) Any public beach;
(4) Anywhere on the Santa Monica Pier;
(5) Any outdoor service area;
(6) Inside any public building (as that term is defined in
Government Code Section 7596);
(7) Any outdoor dining area;
(8) Within twenty feet of the entrance, exit or open window of any
building open to the public;
(9) The Third Street Promenade;
(10) Any farmers' market;
(11) The property of any public library;
(12) Any hotel for which an occupancy permit is issued on or after
February 9, 2012.
(13) Any "vaping lounge" or other business that sells
electronic smoking devices; except that electronic smoking
devices may be used at the two such businesses that were
locally licensed as such lounges in Santa Monica as of June.
24 2014• provided there is appropriate ventilation so as not to
interfere with neighboring occupants and provided no minors
are allowed in the businesses.
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(b) Disposal of Smoking Waste. No person shall dispose of any
cigarette, cigar or tobacco, or any part of a cigarette or cigar, in any
place where smoking is prohibited under this Chapter, except in a
designated waste disposal container.
(c) Liability of Businesses. No business owner, operator or
manager shall knowingly or intentionally allow smoking in an
outdoor dining area that is under his, her or its control. This law
does not require the physical ejection of any person from the
business or the taking of steps to prevent smoking under
circumstances that would involve a significant risk of physical harm.
(d) Posting of Signs. Every business that owns or controls an
outdoor dining area covered under subsection (a)(7) shall post one
or more prominent signs in conspicuous locations to apprise users
of the prohibition of smoking in that outdoor dining area. Multiple
signs must be provided as needed for larger areas to ensure that
signs are readily visible to all users of the area.
(e) Enforcement and Penalties.
(1) Infraction. A violation of this Section is an infraction and shall
be punished by a fine of one hundred dollars for the first violation;
two hundred dollars for a second violation within one year; and five
hundred dollars for a third and subsequent violations within one
year.
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(2) Nonexclusive Remedies and Penalties. Punishment under this
Section shall not preclude punishment pursuant to Health and
Safety Code Section 13002, Penal Code Section 374.4, or any
other law proscribing the act of littering. Nothing in this Section shall
preclude any person from seeking any other remedies, penalties or
procedures provided by law.
SECTION 3. Section 4.45.020 of the Santa Monica Municipal Code is hereby
amended to read as follows:
Section 4.45.020 Definitions.
The following words and phrases, as used in this Chapter, shall
have the following meanings:
(a) "Electronic smoking device" means an electronic or
battery- operated device that delivers vapor for inhalation. The
term includes every variation and type of such devices
including electronic cigarettes, electronic cigars, electronic
cigarillos, electronic pipes, electronic hookahs or any other
similar product.
WUb "Person" means any natural person, partnership, cooperative
association, corporation, personal representative, receiver, trustee,
assignee, or any other legal entity.
tic "Proprietor" means a person with an ownership or managerial
interest in a business covered by this Chapter. An ownership
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interest shall be deemed to exist when a person has a ten percent
or greater interest in the stock, assets, or income of a business
other than the sole interest of security for debt. A managerial
interest shall be deemed to exist when a person can or does have
or share ultimate control over the day -to -day operations of a
business.
(c-) ll"Tobacco product' means any substance containing tobacco
leaf, including, but not limited to, cigarettes, cigars, pipe tobacco,
hookah tobacco, snuff, chewing tobacco, dipping tobacco or bidis;,
and any electronic smoking device.
(e) "Tobacco retailer" means any person who sells, offers for sale
or sample, advertises or otherwise promotes, or does or offers to
exchange for any form of consideration, in public view, any tobacco
products.
SECTION 4. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
SECTION 5. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
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have passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION 6. The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. The City Clerk shall cause the same to be published once in the
official newspaper within 15 days after its adoption. This Ordinance shall become
effective 30 days from its adoption.
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